Lord Howie of Troon: My Lords, that was an interesting intervention but it had two difficulties. First, it seemed to confuse a warning with a prophecy. In his first remarks, the noble Lord, Lord Crickhowell, said that a warning might be given and then the wind might change and the warning would not be necessary. However, a warning is not a prophecy. A warning says: "Get ready; be prepared". There is no point in the noble Lord shaking his head. A warning means: "Be prepared for an eventuality which may or may not occur." If it occurs, you are in terrible difficulty, and if it does not occur you are in a situation of some modest happiness

Lord Crickhowell: My Lords, I am grateful to the noble Lord for giving way. I wish it was quite as simple as that. The difficulty is that if you are

Viscount Ullswater: My Lords, this is Report stage, and therefore I believe that the intervention is out of order.

Lord Howie of Troon: My Lords, I am not sure about that. I am quite happy for the noble Lord to intervene. Is it out of order? I am terribly sorry that I cannot deal with the noble Lord's point.

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There seemed to me to be a weakness in the noble Lord's comments, in his suggestion that the constabularies and others were reluctant to carry out the duties. I did not care for that very much. The amendment put down by my noble friend on the Front Bench contains a good deal of sense. If the sense required to be beefed-up a bit by funds and so on for the authorities, that would not be such a bad thing. I support the amendment quite strongly.

Viscount Ullswater: My Lords, this amendment to Clause 6 introduced by the noble Baroness, Lady Hilton, would make it obligatory for the agency to operate flood warning systems throughout England and Wales and issue warnings to bodies named in the amendment or in an order made by the Minister.

It is obviously vital that clear and effective flood warning arrangements exist to protect the public. My noble friend Lord Crickhowell indicated, quite rightly, that the Government have established a working group. I do not believe that I need say any more about that. He also indicated that new arrangements are being trialed in the Isle of Wight and in Lincolnshire this year. Once the results are to hand, the working group is expected to put forward recommendations as to how the present arrangements could be improved.

The powers under the present legislation are flexible and can be used in ways that suit local circumstances and fit in with the contingency plans worked out with the local authorities, the police, the port authorities and others. We consider that the amendment proposed is premature in the light of the trials that are currently taking place and, moreover, too prescriptive in attempting to set details by order which may best be determined at local level. For those reasons, I hope that the noble Baroness will not press the amendment.

Baroness Hilton of Eggardon: My Lords, my understanding is that the working party does not have its final meeting until 5th April and therefore, presumably, its report and recommendations will be too late, even if it did recommend that someone had a statutory duty. I hope that the Minister will ask his staff to look at this matter again between now and Third Reading and consider whether some modified form of this amendment might be appropriate.

I was not of course suggesting that the environment agency should knock on doors or use loudhailers; that would remain a responsibility of police. I simply felt it would be useful if there were a statutory obligation on the agency to issue warnings in the first place. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [General environmental and recreational duties]:

Lord Norrie moved Amendment No. 36:

Page 8, line 18, leave out ("other than its pollution control functions").

The noble Lord said: My Lords, in speaking to this amendment, I also speak to Amendments Nos. 40 and 48. All three amendments raise the issue of the agency's environmental duties.

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It is self-evident that a new body set up to protect and enhance the environment should have the strongest possible duties to enable it to perform this role. We discussed the effect of Clause 7 in Committee, and I listened closely to what my noble friend the Minister had to say in response. I welcome the fact that the Bill will extend new environmental duties to integrated pollution control and waste functions. This is an important step forward. However, I still do not understand the justification for removing the duty to further conservation in relation to pollution control functions which are so important to the NRA.

There is a widespread view outside this House that the agency's duty to further environmental protection should apply to all of its functions, including pollution control functions. There will be real concern if this Bill is not amended to achieve this.

As my noble friend Lord Crickhowell so eloquently explained to the House on a number of occasions, this duty has been a vitally important bolster for the NRA in tackling water pollution issues across the country. The Broads authority is one of many organisations which are concerned by this clause. It has expressed particular concern about the effect of the clause on the efforts of the NRA to remove phosphates at sewage treatment works. That is vital to its conservation strategy for improving these important wetlands.

The key question that I asked the House to consider is whether it is content to see the duties which currently apply to the NRA being weakened. My noble friend the Minister assured the House in Committee that the Government do not seek to weaken the agency's commitment to conservation. But I have heard nothing which reassures me that that will not be the effect of Clause 7. We have certainly not heard any explanation which could justify the loss of such an important duty. I hope that my noble friend can provide a positive response to these widely held concerns, or suggest another way through this difficulty. I beg to move.

Baroness Hilton of Eggardon: My Lords, I support the amendments proposed by the noble Lord, Lord Norrie, although I can see that there is a tension between pollution control, discharge consents, and so on, and the other obligations on the agency. I speak particularly to Amendment No. 37, which offers in a sense a fallback compromise position. If the Minister feels that the other amendments go beyond the current duties of the NRA, then this amendment would include merely the current NRA duties but would exclude the current duties of Her Majesty's inspectors of pollution. Thus it would effectively preserve the status quo and would address the issue of greatest concern. I hope that this amendment might be welcome to the Government, and that it might suggest a possible way through. Although I would regret weakening the amendments proposed by the noble Lord, Lord Norrie, I think that this might offer a position that the Government might be willing to adopt. I therefore encourage examination of Amendment No. 37.

The Earl of Lytton: My Lords, while I can well understand the reason why the noble Lord, Lord Norrie, moved this amendment, I intervene to say that it seems

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to me that in the question of controlling pollution one is dealing with the matter of degradation of the environment; whereas with the question of enhancing natural life forms, it is a matter of trying to build and improve things. They are essentially two sides of the same coin. One cannot improve the environment in terms of habitats and species unless one has first controlled the pollution. It seems to me that that is the greater evil that has to be addressed. It should not be made subservient to other interests. I do not know whether that is the reason that the Bill has been formulated in the way that it has. I should be interested to know from the Minister whether that supposition on my part is correct.

Lord Moran: My Lords, perhaps I may say a word on Amendment No. 36. Normally the name of the noble Lord, Lord Norrie, at the head of an amendment is a guarantee that it is environmentally sound and sensible. I am therefore particularly sorry to have to differ from the noble Lord on this particular amendment. It is very rare for me to do so.

I think we are all agreed that the environment agency should have a strong duty to take conservation considerations very seriously indeed and do its utmost for conservation; and that that duty should be no weakerand hopefully somewhat strongerthan that which is now imposed on the NRA. I think it is also generally accepted, and it is certainly my view, that the NRA has done very good work in dealing with conservation problems.

As we all know, late last year there was a great clamour by statutory agencies and NGOs arguing that the environment agency's duties as regards conservation were weaker than those that the NRA now has. In response, the environment Minister changed the wording of the duty to "further" conservation, except in respect of pollution control functions. The statutory agencies and a number of NGOs seem to think that to make that exception is simply perverse. For example, the RSPB says:

"The motive behind the Government's determination to exclude pollution control from the duty to further nature conservation remains obscure".

At Second Reading I said that I was one of the few who tended to think that the Government had got the matter about right. I referred to the evidence given by Dr. Slater, head of HM Inspectorate of Pollution, to the Environment Committee of another place on 23rd November last year. I hoped that the NGOs and others concerned would study carefully what he had said. In that hope I have been disappointed. Therefore, I ought to tell the House in summary what Dr. Slater said on that occasion. He was asked specifically whether it was a fact that pollution control was only to "have regard to" conservation. He replied as follows:

"Yes, but that is rather stronger than we have at the moment. At the moment under IPC we have to prevent, minimise and render harmless; we have to take clear note of impact of operations; and we have to basically put the environment back better than we found it. Here this direction actually, even in pollution prevention, requires us to have regard to the desirability of conservation. We think that is an extension of what we do at the moment".

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He went on:

"The Environmental Protection Act is pretty powerful in what it allows you to do in terms of environmental protection ... We think adding a requirement to having regard to conservation takes us further".

He concluded:

"I think our position is that legally we feel, with the current wording of the Bill, we can do everything and more we need to do in terms of pollution control to protect the environment".

From someone who is intimately concerned in dealing with pollution control all the time, that seems pretty conclusive.

Clause 7(1) (a) of the Billthe part that deals with all the duties of the agency except pollution controlsays that the agency is to have a duty:

"to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest".

That is "so far as may be consistent" with four important qualifications, the first of which is that it must be consistent:

"with the purposes of any enactment relating to the functions of the agency".

So the duty to further is very heavily and powerfully qualified. However, in Clause 7(1) (b)the part dealing with pollution controlthe duty "to have regard to" conservation is not so qualified. So in practice, for Clause 7(1) (a), where the duty and the purposes of an enactment conflict, the duty may in some circumstances have to be put aside. It could be challenged in the courts. A qualified duty may therefore in practice be weaker than an unqualified one "to have regard to" it.

So maybe this amendment and its supporters are inadvertently arguing for a partial weakening of the conservation duty in relation to pollution control functions. In any event, from the information that I have it seems that the conservation duty has had a minimal effect on the NRA's functions.

Earlier this evening the noble Earl, Lord Cranbrook, mentioned the correspondence that he had circulated to some Members of this House. I was one of those Members. I read the Minister's letter to him with great interest. In that letter he made it clear that when the NRA has been tackling sewage discharges affecting SSSIs, it was:

"part of the NRA's general work of seeking to secure improvement in river quality and depends upon the powers to set discharge concentration conditions and to require improvements in the effluent quality ... the advice my officials have received from the NRA is that the [conservation] duty has had no effect with regard to its issuance of discharge consents".

It seems to me that we are not therefore concerned with any weakening of a current function. I am surprised that the organisations that are supporting this amendmentI have received briefs for this Report stage from the Countryside Commission, the RSPB, the CPRE and the Wildlife Trustsapparently have paid no attention to Dr. Slater's evidence, to which I referred at Second Reading, or to the qualifications to the duty to further conservation, which none of them mentioned at all in the briefs for Report stage, particularly as I wrote to one of the organisations on 3rd January drawing its attention to those considerations and the Minister's view as expressed at Committee stage.

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Therefore, I believe that this amendment is misconceived. I hope that the Government will not accept it. I believe that the wording in Clause 7 is right. On balance, in the light of what Dr. Slater said, it seems to me that, as we wish, it somewhat strengthens and extends the responsibility of the environment agency to give weight to conservation considerations.

8.30 p.m.

Lord Crickhowell: My Lords, after that, I suppose I should be feeling rather chastened. I and a good many of my colleagues at the NRA have continued to be quite concerned about this issue, despite the observations of the noble Lord and the statements of Dr. Slater.

This is an extremely complex issue. One has only to read the letter that my noble friend Lord Ullswater wrote to me, and a similar letter that he sent to my noble friend Lord Cranbrook, to see that we are in tricky legal waters. I am not a lawyer. I hesitate when I am asked to balance the likely strengths of various subsections against other subsections should they be interpreted by the courts.

It is perfectly true that in very specific terms the NRA has not been able to find a case in which we could say without qualification that it has enabled us to act. But my noble friend Lord Mills cited a case in the north-west of England in which certainly those who were acting for the NRA believed that they were acting because of those powers. What is more, they were very confident that the water authority reacted as it did because it too thought that those clauses had that effect. So we moved from a situation in which people were interpreting the law to that effect to a situation in which it might perhaps be different. So we must move with some caution.

I was taken by surprise when my noble friend Lord Cranbrook raised this issue with an earlier amendment, on the introduction of the Government's new Clause 4. He put a rather interesting question of whether the effect of the Government's new clause was to give cover on this particular point. I am not sure that my noble friend responded and gave a very clear answer then, but it was an interesting question. Turning to the list of SSSIs which English Nature suggested might be put at risk and to the observations of English Nature, I observe that there is reference to the special ecosystem classification for water quality objectives.

I observe also that in his letter to me my noble friend suggests, as did the noble Lord, Lord Moran, that Clause 7(1) (b) may be useful in that context. Fine, I think it may be. But if Clause 7(1) (b) is to have the effect that my noble friend Lord Cranbrook and I want, it can only be really effective if statutory water quality objectives are implemented. I do not believe that sites of special scientific interest, including all those in the English Nature list, will be fully protected without the implementation of the special ecosystem component of SWQOs to which my noble friend referred in the paper that he circulated. My anxiety is that, while it is true that after five years the Government have started on the process of allowing us to proceed with a small number of trial statutory water quality objectives, there is a clear

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hint that they do not believe that the trial will be extended very far or that we are likely to have a large number of statutory water quality objectives.

I return to a point which I have made again and again and which I shall go on making, because I do not believe that the Government are right on this issue. We cannot have effective protection of the water environment and we cannot protect my noble friend's SSSIs and have a fully effective Clause 7(1) (b) unless we have a proper system of statutory water quality objectives and the ecosystem component of them. The Government may have convinced me that their lawyers are better than my own legal expertisethey certainly areand I shall not challenge the careful balance of argument put forward by the Government's lawyers in the letter that was circulated. But from the practical experience of those on the ground I remain utterly convinced, after five years, that the environment will not be effectively protected unless a proper system of water quality objectives is introduced.